Citation Nr: 0315750
Decision Date: 07/14/03 Archive Date: 07/22/03
DOCKET NO. 96-20 095 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in No. Little Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for a psychiatric
disorder.
2. Entitlement to service connection for a low back
disorder.
3. Entitlement to a rating higher than 40 percent for
residuals of fractured pelvis with arthritis of the hips.
4. Entitlement to a compensable rating for stricture of the
urethra.
5. Entitlement to a rating higher than 10 percent for
chronic headaches.
6. Entitlement to a total rating based on individual
unemployability (TDIU rating) due to service-connected
disabilities.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
W. Yates, Counsel
INTRODUCTION
The veteran served on active duty from July 1950 to July
1954.
This matter comes to the Board of Veterans' Appeals (Board)
from a December 1995 RO decision that denied service
connection for post-traumatic stress disorder (PTSD) and a
back disorder. It also denied an increase in a 40 percent
rating for residuals of fracture pelvis with arthritis of the
hips, denied a compensable rating for stricture of the
urethra, and denied entitlement to a TDIU rating. In April
1999, the RO granted service connection and a 10 percent
rating for chronic headaches, and the veteran appealed for a
higher rating. In September 1999, the RO issued a decision
that denied service connection for schizophrenia, and the
veteran appealed. It appears the veteran is seeking service
connection for a psychiatric disorder, however diagnosed, and
thus the Board has recharacterized the issues of service
connection for PTSD and schizophrenia as a single issue of
service connection for a psychiatric disorder.
The issue of entitlement to a TDIU rating is the subject of
the remand at the end of the Board decision.
FINDINGS OF FACT
1. During service the veteran experienced stressors which
led to current PTSD. A post-service diagnosis of
schizophrenia has not been medically related to service.
2. The veteran's current low back disorder was caused or
aggravated by his service-connected residuals of fractured
pelvis with arthritis of the hips.
3. The veteran's residuals of fractured pelvis with
arthritis of the hips are manifested by slight limitation of
motion in the hips.
4. Urine leakage, awakening to void at least two times per
night, daytime voiding interval between 2 and 3 hours, a need
for dilatation every 2 to 3 months, or any other symptom
required for a compensable rating for urethral stricture is
not shown.
5. The veteran's headache disability is manifested by
subjective complaints of daily headaches; characteristic
prostrating attacks averaging one in 2 months over the last
several months is not demonstrated.
CONCLUSIONS OF LAW
1. A psychiatric disorder, specifically PTSD, was incurred
in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R.
§§ 3.303, 3.304 (2002).
2. A low back disorder is proximately due to or the result
of a service-connected disability. 38 U.S.C.A. § 1110 (West
2002); 38 C.F.R. §§ 3.303, 3.310 (2002).
3. The criteria for a rating higher than 40 percent for
residuals of fractured pelvis with arthritis of the hips are
not met. 38 U.S.C.A. §1155 (West 2002); 38 C.F.R. §§ 4.71a,
Diagnostic Codes 5250, 5252, 5254, 5255, 5275, 5294 (2002).
4. The criteria for a compensable rating for stricture of
the urethra are not met. 38 U.S.C.A. § 1155 (West 2002); 38
C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7518 (2002) and 38
C.F.R. § 4.15a, Diagnostic Code 7518 (1993).
5. The criteria for an evaluation higher than 10 percent for
headaches have not been met. 38 U.S.C.A. § 1155 (West
2002); 38 C.F.R. § 4.124a, Diagnostic Codes 8045, 8100
(2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual Background
The veteran served on active duty in the Air Force from July
1950 to July 1954.
A review of his service medical records revealed treatment
for a variety of conditions. In December 1951, the veteran
sought treatment for injuries incurred in a motor vehicle
accident. The report noted admitting diagnoses of simple
fracture of the pelvis, simple dislocation of the joint
pelvis, laceration of the left hand, face and bladder, and
concussion of the brain. The veteran remained hospitalized
for two months, whereupon he was released with discharge
diagnoses of avulsion chip fracture of the right pubis,
simple joint dislocation of the right hemipelvis, sacroiliac
and symphysis pubis, and simple fracture of the right sacrum.
No artery or nerve involvement was indicated, and the veteran
returned to duty in May 1952.
In August 1952, the veteran was hospitalized with complaints
of mild occipital headaches and dizziness for the past two
months. The veteran remained hospitalized for ten days for
observation. During his stay, he had no complaints of
headaches or dizziness. A treatment report, dated in
September 1952, noted the veteran's complaints of dizzy
spells. A neurological evaluation revealed no evidence of
organic disease of the nervous system. A psychiatric work-
up revealed no evidence of a neuropsychiatric disease. A
treatment report, dated in December 1952, noted a diagnosis
of gonorrhea, acute, new. A subsequent treatment report that
same month noted treatment for urethritis due to gonococcus.
A physical examination, performed in January 1954, noted
enlarged and painful inguinal nodes. A March 1954 treatment
report noted the veteran's complaints of pain in the right
hip and groin. He also reported having cramps in his legs,
which did not stop him from running or playing ball. X-ray
examination of the pelvic area revealed an irregular
deformity of the pubic rami, bilaterally, more on the right,
with no arthritis detected. The veteran's discharge
examination, dated in June 1954, revealed, in part, a normal
spine and normal psychiatric findings.
Post-service medical records dating back to the veteran's
discharge have been obtained from both VA and private
sources.
In January 1955, the RO issued a decision granting service
connection at a 10 percent rating for pelvic deformity, and
granting service connection at a 10 percent rating for
stricture of the urethra, due to trauma.
In August 1960, the veteran was hospitalized for treatment of
a skin rash. Physical examination revealed, in part, a mild
loss of lumbar lordosis and complaints of tenderness over the
lumbosacral joint.
In September 1961, a VA physical examination was conducted.
The report noted the veteran's complaints of weak spells and
giddiness. He reported that he has frequent bowel movements
and that food goes right through him. X-ray examination of
the pelvis revealed complete fusion of the symphysis pubis.
There was a deformity with irregular sclerotic changes
involving the superior and inferior ramus of the pubic bone,
bilaterally. There was a tilting deformity of the pelvis,
and minimal to moderate hypertrophic changes of the hip
joint, bilaterally. Physical examination revealed gross
asymmetry of the pelvis with the left hemi pelvis somewhat
displaced toward the left side. The veteran's gait was quite
satisfactory, and the length and circumference of the
extremities were equal. Range of motion testing of the hips
revealed flexion to 90 degrees, bilaterally. Extension,
rotation, adduction and abduction were normal. Examination
in a prone position revealed persistence of considerable
asymmetry through the pelvis. The report concluded with a
diagnosis of residuals of moderately displace fracture of the
pelvis, multiple bony union of the symphysis pubis, partial
ankylosis of both hip joints, with beginning traumatic
arthritis in the right hip joint.
In September 1961, the RO issued a decision granting an
increased rating to 30 percent for residuals of displaced
fracture of the pelvis with partial ankylosis of the hip
joints and traumatic arthritis on the right.
A treatment summary letter, dated in August 1963, was
received from V. Smith, M.D. The letter noted the veteran's
complaints of increasing back pain with nocturia four to five
times for the past three months. Urinary and prostatic
examinations were within normal limits. Dr. Smith opined
that the veteran showed an increase in lumbo-sacral lordosis
of the spine due to his old pelvic fracture and shortened
left leg.
In September 1953, a VA physical examination was conducted.
The report of this examination noted the veteran's complaints
of pain in the lumbar region, groin and right hip on walking
and bending. Physical examination revealed gross asymmetry
of the pelvis with the hemipelvic area of the ilium displaced
toward the left side. The length of the extremities was
equal. Range of motion testing of the hips revealed flexion
to 90 degrees, bilaterally. Internal rotation was 50 percent
of normal bilaterally. Extension, adduction and abduction
were all normal bilaterally. The report concluded with
diagnoses of residuals of fractured pelvis with partial
ankylosis of both hip joins and beginning traumatic arthritis
of the right hip.
In October 1963, a VA genitourinary examination was
conducted. Physical examination revealed a normal voiding
stream and a normal prostate gland. The report concluded
with a diagnosis of normal genitourinary tract with no
evidence of urethral stricture.
In June 1965, a VA genitourinary examination was conducted.
The report concluded with a diagnosis of a normal
genitourinary tract except for a few WBC's for which the
veteran was given a prescription. The VA examiner noted that
he saw no evidence of urethral stricture.
In June 1965, a VA physical examination was conducted. The
veteran walked with a normal gait. Physical examination
reveled the right iliac crest appeared to be slightly lower
level than the left. The veteran was able to mount the
examining table without difficulty. Patrick's maneuvers,
straight leg raising tests and sacro-iliac shearing tests
were all negative, bilaterally. Pelvis manipulation produced
no pain or discomfort, and the veteran's low back was fest to
be within normal limits. Range of motion testing revealed a
mild loss of full flexion and abduction in each hip. The
report concluded with a diagnosis of multiple pelvis
fractures and hypertrophic arthritis of the hips,
bilaterally.
A VA physical examination was performed in October 1966. The
report noted the veteran's complaints of trouble bending and
walking. Physical examination revealed that he entered the
room with a rather halting gait, but no definite limp. He
could run in place in a normal manner with no gross
asymmetries of the pelvic girdle being noted except a
downward tilting of the right side of the pelvis.
Examination of the lumbosacral spine showed about a ten
degree limitation of flexion, about five degree limitation of
extension and normal lateral flexion and rotation, with
complaints of pain at the extremes of each motion. There was
no evidence of swelling, crepitus, warmth, erythema or
deformity in the lumbar spine, and no evidence of muscle
spasms or atrophy found. X-ray examination of the
lumbosacral spine and pelvis revealed a healed fracture
involving both pubic bones, superior and inferior rami, which
has result in an ankylosis of the pubis. The hip joints
showed no gross abnormality. The pelvis was deformed as a
result of the injury, and the pelvis circle deviated to the
left. The report concluded with a diagnosis of residuals of
fracture pelvis, tilt with mild limitation of motion,
moderately symptomatic with bony deformity.
In January 1967, the RO issued a rating decision reducing the
disability rating assigned the veteran's residuals of
fractured pelvis with partial ankylosis hip joints and
traumatic arthritis on the right, from 30 percent to 10
percent, effective in April 1967. The RO's decision also
reduced the disability rating assigned to the veteran's
stricture of the uretha, from 10 percent to 0 percent,
effective in April 1967.
The veteran underwent a VA orthopedic examination in June
1968. The examiner noted that the veteran walked stiffly and
with a short leg limp on the right side. Measuring the leg
from the anterior superior iliac spine to the medial
malleolus, revealed on the right it measured 37 inches and on
the left 37 3/4 inches. One side of the pelvis was definitely
elevated and displaced anteriorly. The report also noted a
decreased range of motion in the right hip in all parameters.
The examination report concluded with a diagnosis of post
communited fracture dislocation of the pelvis, with residual
deformity, especially to the left lower extremity.
In February 1969, a VA orthopedic examination was conducted.
The report noted the veteran's complaints of pain when
bending, lifting and walking. X-ray examination of the
lumbar spine revealed no fracture or dislocation. The height
of the vertebra were uniform and the spaces were well
maintained. There was no evidence of spondylosis or
spondylolisthesis. The sacrum and coccyx showed no bony
abnormalities.
A VA orthopedic examination, performed in September 1969,
noted that the spine had normal movement except for some
restriction, approximately 20 percent, of forward flexion and
lateral flexion to each side. Straight leg raising was to 80
degrees and essentially negative. Leg length discrepancy was
noted to be 1/2 inch shorter on the right. The report
concluded with a diagnosis of deformed pelvis, residuals of
healed fracture to both pubic bones, with ankylosis of the
pubes, pelvic asymmetry and limitation of motion of both
hips.
In July 1971, the veteran was hospitalized for treatment of
alcoholism. The report noted the veteran's history of
drinking heavily since 1965. The hospitalization report
noted a deformity of the back which the veteran claimed was
due to an airplane accident, showing deformity of the proper
hilar alignment. He was discharged two months later with
diagnoses of alcohol addition and drug dependence
(marijuana).
In February 1973, a VA orthopedic examination was conducted.
The report noted the veteran's complaints that his pelvis was
out of line. He also reported pains in the low back and on
the right caused by excessive walking. Physical examination
revealed pain in the right lumbosacral region during forward
flexion. Range of motion of the back was limited
approximately 25 percent in all planes in the lumbar region,
some of which was attributed by the examiner to voluntary
restriction. X-ray examination of the lumbar spine and
pelvis revealed, in part, slight hypertrophic changes
involving the upper and outer margins of both acetabula.
There was some narrowing of the lumbosacral disc and some
spurring of anterior-superior margins of the body of L3. The
report concluded with a diagnosis of deformity of the pelvis,
residuals of fracture of both pubic bones, healed with
ankylosis of symphysis pubis with pelvic asymmetry and
limitation of motion of the lumbar spine and hips.
In March 1973, the RO issued a rating decision granting an
increased rating, from 10 percent to 20 percent, for
residuals of pelvic fractures with limitation of motion of
the hips and spine and traumatic arthritis.
In February 1974, a VA orthopedic examination was conducted.
The report noted a reduced range of motion of about 25
percent in all planes in the lumbar region, with pain on the
extreme ends of motion. The report also noted a reduced
range of motion in the veteran's hips. X-ray examination of
the lumbosacral spine and pelvis revealed, in part, minimal
osteophytes involving the articulating margins of all the
lumbar bodies. The disc spaces and lordotic curvature were
normal, but there was minimal rotatory scoliosis with
convexity to the right side. The report concluded with a
diagnosis of residuals of old fractures of both pubic bones,
with healed deformity of the pelvis, ankylosis of the
symphysis pubes with pelvic asymmetry and with limitation of
motion and degenerative changes of the lumbar spine and hips.
In September 1974, a VA orthopedic examination was conducted.
The report noted that the range of motion in the veteran's
back was restricted about 33 percent in all planes, with pain
and discomfort on the extremes ends of motion, especially on
lateral flexion to the right and forward flexion.
In March 1976, a VA orthopedic examination was conducted.
The report noted, in part, a reduced range of motion in the
veteran's spine, approximately a 25 percent restriction. X-
ray examination of the lumbosacral spine revealed marginal
osteophytes at L3 and L4.
In July 1976, the RO issued a decision granting an increased
rating to 30 percent for deformity of the pelvis, residuals
of fracture of both pubic bones, healed, ankylosis of pubes
with pelvic asymmetry, with limitation of motion and
traumatic arthritis of the lumbar spine and both hips.
In August 1977, the veteran was admitted to the alcohol
rehabilitation program. He was discharged after one week
with diagnoses of chronic alcoholism and mixed character
disorder.
In October 1978, a VA orthopedic examination was conducted.
The report noted the veteran's complaints of considerable
pain in the lower part of the back radiating down into his
hips. Range of motion testing of the spine was normal,
except for flexion which was limited to 65 degrees. On
genitourinary examination, urine was clear and no obstruction
was found. The VA examiner noted that no stricture was
found.
In November 1978, the RO issued a decision granting an
increased rating to 40 percent for residuals of fracture to
the pelvis with limitation of motion and arthritis of the
hips.
In October 1979, a VA aid and attendance examination was
conducted. The report noted the veteran's complaints of low
back pain, bad nerves and a ruptured right side. Physical
examination revealed a slight pelvic tilt with shortened left
leg and compensatory lumbar scoliosis. The veteran was noted
to walk with a slight list. The report concluded with
diagnosis of right inguinal hernia, repairable, chronic
alcoholism, and old fracture of the pelvis, with moderate
compensatory scoliosis and shortened left lower extremity.
In November 1982, a treatment summary letter was received
from V. Smith, M.D. Dr. Smith indicated that he had treated
the veteran for the past 17 years, and that he had suffered a
pelvic fracture while in the service resulting in a
compensatory scoliosis of the lumbar spine. Dr. Smith also
indicated that the veteran has anxiety-depression syndrome
which led to a chronic ethanolic hepatitis.
Outpatient treatment reports, dated from May 1984 to April
1985, noted various complaints, including back pain and
headaches.
In June 1985, a treatment summary letter was received from V.
Smith, M.D. In his letter, Dr. Smith indicated that the
veteran had suffered an old pelvic fracture which resulted in
a pelvic tilt and lumbar scoliosis.
An April 1986 treatment report noted tenderness over the
lumbar spine. The report concluded with an assessment of
mild degenerative joint disease.
In October 1986, a VA orthopedic examination was conducted.
The report noted the veteran's complaints of pain in the
lower back and frequent urination. Range of motion testing
of the spine revealed a reduced range of motion. The report
concluded with diagnoses of residuals of fracture of the
pelvis with traumatic arthritis and chronic lumbosacral
strain with limitation of motion.
An April 1994 treatment report noted that the veteran had
completed the PTSD program.
In August 1994, a VA orthopedic examination was conducted.
The examination noted the veteran's complaints of low back
pain which radiates down into both buttocks. He denied
receiving treatment for his urethral stricture, denied
urinary hesitancy and indicated that he has a fairly strong
urinary stream. Physical examination revealed a normal
carriage and posture. Range of motion testing of the spine
revealed a reduced range of motion. There was no redness,
heat, swelling or tenderness. Curvature of the spine was
normal, and there was no spasm indicated. As for the hips,
there was no redness, heat, swelling or tenderness.
Extension of the left hip was from 0 to 10 degrees. Range of
motion of the hips was otherwise, normal with flexion from 0
to 125 degrees, extension from 0 to 30 degrees, adduction
from 0 to 25 degrees, abduction from 0 to 45 degrees,
external rotation from 0 to 60 degrees and internal rotation
from 0 to 40 degrees. There was no redness, heat, swelling
or tenderness noted on examination of the pelvis. The report
concluded with an assessment of residuals of pelvic fracture,
chronic hip arthralgias with near normal examination except
for reduction in the extension range of motion on the left,
history of urethral stricture, and low back pain. The VA
examiner further opined that the veteran's back disorder was
mechanical in origin with no specific disease process. He
found no relationship between the service-connected hip
condition and the lumbar pain currently alleged.
In August 1994, a VA examination for PTSD was conducted. The
report of this examination noted the veteran's inservice
stressors and his history of psychiatric treatment. Mental
status examination revealed the veteran to be underactive and
quite tense. His mood appeared depressed, and his thought
processes were normal. Memory was fair, and he was well-
oriented. He may have had some hallucinations, but the
examiner believed these were flashbacks. Insight was
superficial and judgment was within normal limits. The
report concluded with psychiatric diagnosis of PTSD and
dysthymia.
A November 1994 treatment report noted the veteran's
complaints of feeling depressed. The report noted an
assessment of PTSD.
In April 1995, the veteran was hospitalized with complaints
of nervousness, anxiety and depression. He remained
hospitalized for one month, and was discharged with diagnoses
of PTSD and atypical depression with chronic pain and
intermittent psychotic features.
In August 1995, a hearing was held before the RO. The
veteran testified as to service stressors. He stated that he
was injured in a service motor vehicle accident in which
another passenger was killed and others injured. He noted
that while he was stationed at K-14, Kimpo, in Korea, he was
subjected to enemy air attacks from Bedcheck Charlie. He
also reported witnessing a fellow soldier accidentally leap
onto a bayonet while jumping into a foxhole during a raid.
Finally, he reported seeing the killing of an unarmed young
Korean boy.
In December 1995, the veteran was treated for injuries
sustained in a motor vehicle accident. The report noted his
complaints of right-sided neck pain and frontal headaches.
X-ray examination of the cervical spine revealed degenerative
disc disease at many levels, with no obvious acute traumatic
injury.
In March 1996 treatment report noted the veteran's complaint
of ringing in his head and dizzy spells since his accident.
A response from the Air Force Historical Research Agency,
dated in May 1996, noted that they could only corroborate,
but not substantiate, the veteran's history of having been
subjected to air attacks while stationed at the base at Kimpo
in Korea. Attached to this response was a few pages from an
article noting the problems of "Bedcheck Charlie" and that
Kimpo was hit several times.
X-ray examination of the cervical spine, performed in
November 1997, revealed diffuse cervical spondylosis. A
magnetic imaging resonance (MRI) examination, performed in
November 1997, revealed degenerative disc disease of the
cervical spine.
In July 1998, a VA examination for mental disorders was
conducted. The report noted the veteran's psychiatric
treatment history. Mental status examination revealed the
veteran to be alert and oriented. Speech was fluent and eye
contact overly constant. Affect was even, insight fair, and
judgment poor. The report concluded with an impression that
the veteran was experiencing a wide range of psychological
and somatic symptoms. The VA examiner noted that the veteran
does have a history of substance dependence, and there are
also suggestions of ongoing psychosis, depression and
anxiety. The examination report concluded with diagnoses of
paranoid schizophrenia, cocaine dependence in early
remission, alcohol dependence sustained in full remission,
depressive disorder and pain disorder associated with both
psychological factors and history of concussion.
In August 1998, a VA neurological examination was conducted.
The report noted the veteran's complaints of constant
headaches for which he takes Tylenol and Ibuprofen. Physical
examination revealed the veteran to be alert and oriented.
Motor strength examination was 5/5 throughout. Sensory
examination was intact to light touch, pinprick and vibration
throughout. The report concluded with an impression of
chronic headaches, tension type.
In 1998 and 1999, the veteran submitted several lay
statements indicating that the area in which he served in
Korea, i.e. Kimpo, was subjected to air attacks. He also
submitted newspaper articles relating to his service motor
vehicle accident in which other passengers had been injured
and killed.
A treatment report, dated in August 1998, noted that the
veteran was taking Valium for situational anxiety. The
report noted that the veteran had a history of PTSD in the
past. The report listed an assessment of situational anxiety
and physical dependence on Valium.
In December 1998, a VA examination for joints was conducted.
The report noted the veteran's complaints of pain in the
pelvis area and in the right hip. Physical examination of
the lower back reveals diffuse tenderness from L1 through S2.
No paravertebral muscle spasm. The veteran resisted range of
motion of the lower back to about 20 degrees of flexion and
10 degrees of extension. Examination of the hips revealed
flexion to 60 degrees, abduction to 30 degrees, adduction to
20 degrees, internal and external rotation to 30 degrees,
bilaterally. Leg lengths were noted to be equal and there
was no gross motor, sensory, or reflex deficit in either
lower extremity. The veteran walked with a stilted type
gait. X-ray examination of pelvis revealed a prior fracture
involving the pubic rami and the pelvic ring was slightly
intruded. The pubic rami has since healed and there is now
bony symphsis pubis. At the right hip, there is a slight
irregularity of the posterior acetabular wall, but only
suggesting a possible dislocation of the hip at some time or
another. There are no arthritic changes in the hip itself.
No avascular necrosis changes were seen. The pelvic outlet
is slightly deformed suggesting that at one time there was
slight intrusion of the right hemi pelvis. The report
concluded with a diagnosis of remote fracture of the right
hemi pelvis. The VA examiner noted that this condition had
long since healed and that the veteran had no true arthritis
in either hip. He also noted that despite the veteran's
resistance of range of motion testing, and his artificial
gait, he could not provide any objective reason for the
functional loss due to remote pelvic fracture which had
healed nicely.
In February 1999, a VA examination for PTSD was conducted.
The VA examiner noted that he had reviewed the veteran's
claims folders, and discussed with him his history. Mental
status examination revealed the veteran to be alert,
oriented, anxious and restless. The report noted the
veteran's long history of polysubstance abuse.
The examiner noted that the findings do not warrant
confirmation of a diagnosis of PTSD or schizophrenia. The
report concluded with a diagnosis of polysubstance
dependence.
In January 1999, a hearing before the RO was conducted. At
the hearing, the veteran testified that he has headaches of
increasing severity. He also reported receiving treatment
for PTSD. The veteran discussed his service automobile
accident in which he was injured and a fellow soldier died.
He also reported coming under fire from air attacks while in
Korea, and witnessing the death of a civilian child. As for
headaches, the veteran reported that they occur constantly.
He reported taking Tylenol and acetaminophen which helps
some. The veteran also testified to difficulties urinating.
He indicated that he sometimes had to urinate four to five
times a night.
In April 1999, a VA neurological examination was conducted.
The report noted the veteran's complaints of headaches that
hurt behind the eyes in the occipital area. He reported that
they are generally tolerable throughout the day, but that
they become intolerable about two to three times per week,
during which time he has to sit and hold his head in his
hands. Motor evaluation revealed 5/5 strength throughout.
The veteran was able to heel and toe walk without difficulty.
Tone was generally normal in the upper and lower extremities.
Sensory evaluation was intact to pinprick and vibration
throughout, except the toes where there was decreased
sensation to vibration. The report concluded with an
impression of chronic headache secondary to head injury.
A June 1999 treatment report noted the veteran's complaints
of chronic headaches and right hip pain.
A treatment report, dated in January 2000, noted the veteran
manifested some sub-clinical symptoms of PTSD, but did not
fulfill the full criteria of the diagnosis according to DSM-
IV. There was sad affect, but no signs of delusions,
paranoia, hallucinations or thought disorder. A February
2000 treatment report noted the veteran's complaints of
nightmares about his experiences in Korea. The veteran also
reported auditory hallucinations.
X-ray examination of the pelvis, performed in February 2000,
revealed narrowing of the right hip joint with osteophystes
present and sclerotic changes at the acetabulum presumed
degenerative.
In March 2000, a VA neurological examination was conducted.
The report noted the veteran's complaints of headaches that
are occipital and behind his eyes. He indicated that these
are constant and only vary in intensity. He stated that he
has been taking Midrin, but that it did not help. He also
reported occasional nausea and vomiting with these headaches
when they increase in intensity.
X-ray examination of the hips, performed in September 2000,
revealed an impression of severe hip joint space narrowing.
Avascular necrosis could not be excluded.
An October 2000 treatment report noted the veteran's
complaints of constant and sharp fronto-occipital headaches,
bilaterally. The report noted an assessment of tension
headaches, with possible migraineous component. A March 2001
treatment report noted the veteran's complaints of headaches
with increasing severity. He indicated that the headaches
occured daily and involved the frontal and occipital regions
and radiates down the back of the neck. A CT scan of the
head, performed in April 2001, revealed normal findings. An
April 2001 treatment report noted the veteran's continuing
complaints of headaches. The veteran reported having almost
daily headaches of a severe nature lasting all day. A May
2001 treatment report noted the veteran's complaints of
urinating more than usual, four to five times a day, low back
pain on the right side and general weakness.
II. Analysis
Through correspondence, the rating decisions, the statements
of the case, and supplemental statements of the case, the
veteran has been notified with regard to the evidence
necessary to substantiate his claims. Pertinent records have
been obtained, and VA examinations have been completed.
Thus, the Board finds that the notice and duty to assist
provisions of the law have been satisfied. 38 U.S.C.A. §§
5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16
Vet. App. 183 (2002).
A. Service Connection for Psychiatric Disorder
Service connection may be granted for a disability due to a
disease or injury which was incurred in or aggravated by
active service. 38 U.S.C.A. § 1110; 38 C.F.R.
§ 3.303.
Service connection for certain chronic diseases, including
psychoses, will be presumed if they are manifest to a
compensable degree within the year after active service. 38
U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
Personality disorders are not diseases or injuries within the
meaning of the applicable legislation on VA compensation
benefits, and service connection is prohibited for
personality disorders. 38 C.F.R. §§ 3.303(c), 4.9, 4.127;
Beno v. Principi, 3 Vet. App. 439 (1992).
Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with 38 C.F.R. §
4.125(a) [i.e., under the criteria of DSM-IV]; a link,
established by medical evidence, between the veteran's
current symptoms and an in-service stressor; and credible
supporting evidence that the claimed in-service stressor
occurred. If the evidence establishes that the veteran
engaged in combat with the enemy and the claimed stressor is
related to that combat, in the absence of clear and
convincing evidence to the contrary, and provided that the
claimed stressor is consistent with the circumstances,
conditions, or hardships of the veteran's service, the
veteran's lay testimony alone may establish the occurrence of
the claimed inservice stressor. 38 C.F.R. § 3.304(f).
The evidence shows that during his active duty, the veteran
was injured in a serious motor vehicle accident in which
another passenger was killed. He further alleges that he was
subjected to enemy air attacks, and witnessed the death of a
civilian child. The veteran attributes his current
psychiatric disorder to these service incidents.
In support of his claim, the veteran has submitted numerous
lay statements, newspaper, and other articles. Based on this
information, the veteran's assertions of service stressors
are sufficiently verified. There are medical records stating
that the veteran has PTSD from a service stressor, and other
medical records finding no PTSD. The Board finds that the
evidence is about evenly divided on the question of an
acceptable PTSD diagnosis, and the veteran is given the
benefit of the doubt on this point. 38 U.S.C.A. § 5107(b);
Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus all
elements for service connection for PTSD are met, and service
connection for such psychiatric disorder is warranted. As to
the diagnosis of schizophrenia, such is shown many years
after service and is not medically linked to service, and
thus service connection is not indicated for that condition.
In sum, the Board grants service connection for the
particular psychiatric condition of PTSD.
B. Service Connection for a Low Back Disorder
The veteran is claiming service connection for a low back
disorder. He contends that this condition was incurred as a
result of his service automobile injury. In the alternative,
he alleges that this condition is secondary to his service-
connected residuals of fractured pelvis with arthritis of the
hip.
Service connection may also be granted on a secondary basis
if a claimed disability is found to be proximately due to or
is the result of a service-connected disability. 38 C.F.R. §
3.310(a).
After reviewing the evidence of record, the Board concludes
that service connection is warranted for a low back disorder
on a secondary basis from the veteran's service-connected
residuals of fractured pelvis with arthritis of the hips. A
VA examination, performed in February 1973, concluded with a
diagnosis of deformity of the pelvis, residuals of fracture
of both pubic bones, healed with ankylosis of symphysis pubis
with pelvic asymmetry and limitation of motion of the lumbar
spine and hips. Subsequent VA examinations also noted a
reduced range of motion in the veteran's spine. A VA
examination in October 1979 noted findings of a slight pelvic
tilt with shortened left leg and compensatory lumbar
scoliosis. The report concluded with a diagnosis of old
fracture of the pelvis, with moderate compensatory scoliosis
and shortened left lower extremity. A medical opinion letter
from V. Smith, M.D, dated in November 1982, concluded
indicated that the veteran suffered a pelvic fracture while
in the service, resulting in a compensatory scoliosis of the
lumbar spine. Resolving reasonable doubt in favor of the
veteran, the Board concludes that the veteran's current low
back disorder was caused by or permanently worsened by his
service-connected residuals of fractured pelvis with
arthritis of the hips. Accordingly, service connection is
warranted for a low back disorder on a secondary basis.
38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).
C. Increased Rating for Residuals of Fractured Pelvis, With
Arthritis of the Hip
The veteran contends that a rating higher than 40 percent is
warranted for his service-connected residuals of fractured
pelvis, with arthritis of the hips.
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities, which
is based on average impairment of earning capacity. Separate
diagnostic codes identify the different disabilities. 38
U.S.C.A. § 1155; 38 C.F.R. Part 4.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Francisco v. Brown, 7 Vet. App. 55 (1994).
Diagnostic Code 5255, provides that impairment of the femur,
with malunion, is rated 30 percent disabling when there is
marked knee or hip disability. Fracture of surgical neck of
the femur, with false joint or fracture of the shaft or
anatomical neck of the femur with nonunion, without loose
motion, weightbearing preserved with aid of brace warrants a
60 percent evaluation. Fracture of the shaft or anatomical
neck of the femur with nonunion, with loose motion, (spiral
or oblique fracture) warrants an 80 percent evaluation. 38
C.F.R. § 4.71a, Diagnostic Code 5255.
Sacroiliac injury and weakness is rated as lumbosacral
strain. 38 C.F.R. § 4.71a, Diagnostic Code 5294.
Lumbosacral strain is rated 40 percent when severe, with
listing of the whole spine to the opposite side, positive
standing position, loss of lateral motion with osteo-
arthritic changes, or narrowing or irregularity of joint
space, or some of the above with abnormal mobility on forced
motion. A higher rating is not warranted under this code.
38 C.F.R. § 4.71a, Diagnostic Code 5295.
Normal range of motion of the hip is flexion from 0 to 125
degrees and abduction from 0 to 45 degrees. 38 C.F.R. §
4.71, Plate II. On examination in December 1998, the
veteran's hips exhibited flexion to 60 degrees, abduction to
30 degrees, adduction to 20 degrees, internal and external
rotation to 30 degrees, bilaterally. Leg lengths were noted
to be equal and there was no gross motor, sensory, or reflex
deficit in either lower extremity.
After reviewing the evidence of record, the Board concludes
that a higher rating is not warranted for the veteran's
service-connected residuals of fractured pelvis with
arthritis of the hips.
While reduced, the limitation of motion shown by the
veteran's hips would not warrant more than 10 percent ratings
if rated separately.
Limitation of flexion of the thigh to 45 degrees warrants a
10 percent evaluation. A 20 percent rating requires that
flexion be limited to 30 degrees. A 30 percent evaluation
requires that flexion be limited to 20 degrees. A 40 percent
evaluation requires that flexion be limited to 10 degrees.
38 C.F.R. § 4.71a, Code 5252.
Limitation of rotation of the thigh warrants a 10 percent
rating when toe-out of the affected leg cannot be performed
to more than 15 degrees. Limitation of adduction of the
thigh warrants a 10 percent rating when the legs cannot be
crossed due to the limitation. Limitation of abduction of
the thigh warrants a 20 percent rating when motion is lost
beyond 10 degrees. 38 C.F.R. § 4.71a, Code 5253.
Under Diagnostic Code 5250, used in rating ankylosis of the
hip, a 60 percent rating is warranted for an ankylosed hip in
favorable position in flexion at an angle between 20 degrees
and 40 degrees and slight adduction or abduction. Neither of
the veteran's hips is shown to be ankylosed.
Additional provisions that are potentially applicable to the
veteran's disability and that provide for an evaluation in
excess of 40 percent include Diagnostic Codes 5250, 5254,
5255 and 5275. On review of the medical evidence of record,
the Board finds that an evaluation in excess of 40 percent is
not warranted under these provisions as there is no evidence
that the veteran has ankylosis of either hip (Diagnostic Code
5250), a fracture of the shaft or anatomical neck of the
femur with nonunion (Diagnostic Code 5254), or shortening of
either lower extremity by 3 to 3 1/2 inches (Diagnostic Code
5275).
The medical evidence shows that the residuals of fractured
pelvis, with arthritis of the hips, are manifested primarily
by a mild limitation of motion in the hips, and pain that
produces only minimal functional impairment. The limitation
of motion is not of such significance to warrant the
assignment of a higher evaluation under 38 C.F.R. §§ 4.40,
4.45, 4.59; DeLuca v. Brown,, 8 Vet. App. 202 (1995).
As the preponderance of the evidence is against the claim for
an increased rating for residuals of fractured pelvis with
arthritis of the hips, the benefit-of-the-doubt rule does not
apply, and the claim must be denied. 38 U.S.C.A. § 5107(b);
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
D. Increased Rating for Stricture of the Urethra
The veteran's service-connected stricture of the urethra is
currently evaluated as noncompensably disabling under
Diagnostic Code 7518.
Stricture of the urethra will be rated as a voiding
dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7518.
Voiding dysfunction is further classified as involving urine
leakage, urinary frequency, or obstructive voiding.
38 C.F.R. § 4.115a. For urinary leakage, a 20 percent rating
is warranted where the condition requires the wearing of
absorbent materials which must be changed less than two times
per day. Id. The criteria for rating urinary frequency
specify that a 10 percent rating is warranted where there is
a daytime voiding interval between two and three hours, or
awakening to void two times per night. Id. Obstructed
voiding with or without stricture disease requiring
dilatation 1 to 2 times per year warrants a noncompensable
rating. Marked obstructive symptomatology (hesitancy, slow
or weak stream, decreased force of stream) with any one of
the following warrants a 10 percent rating: (1) post void
residuals greater than 150 cc; (2) uroflowmetry; marked
diminished peak flow rate less than 10 cc/sec; (3) Recurrent
urinary tract infections secondary to obstruction; or, (4)
Stricture disease requiring periodic dilation every 2 to 3
months. Id.
The Board notes that Diagnostic Code 7518 has been
redesignated and revised during the course of this appeal.
See 59 Fed. Reg. 2528 (January 18, 1994).
Prior to February 17, 1994, Code 7518 provided that a
noncompensable evaluation was warranted for healed, slight to
moderate stricture of the urethra requiring only occasional
dilations. A 10 percent evaluation was appropriate when
dilations were required every 2 to 3 months. 38 C.F.R. §
4.115a, Diagnostic Code 7518 (1993). The Board observes,
however, that effective February 17, 1994, stricture of the
urethra will be rated as voiding dysfunction.
Either the old or new rating criteria may apply, whichever
are more favorable to the veteran, although the new rating
criteria are only applicable since their effective date.
Karnas v. Derwinski, 1 Vet. App. 308 (1990); VAOPGCPREC 3-
2000. The veteran's claim for an increased rating for this
condition was received in December 1993, and the RO has
considered both versions so there is no prejudice to the
veteran to proceed herein.
Applying the former criteria for rating the veteran's
condition, the veteran has not undergone frequent or even
infrequent dilatations. He has not experienced cystitis or
pain upon urination. Accordingly, a compensable disability
evaluation is not warranted under the former rating criteria
for a urethral stricture. Moreover, a compensable rating
also is not warranted under the current criteria. In May
2001, the veteran report complaints of urinating four to five
times a day. Otherwise, there is little other showing of any
recent treatment for this condition. A need absorbent
materials or for intermittent catheterization is not shown.
There has been no dilation for the past several years.
Comparing these symptoms with the criteria of the rating
schedule, the Board finds that the criteria for a compensable
rating are not met. This is because urine leakage, awakening
to void two time per night, dilations every 2 to 3 months, or
any other symptom that warrants a 10 percent rating simply is
not shown.
The weight of the credible evidence demonstrates that the
veteran's stricture of the urethra is noncompensable under
either the old or new rating criteria. As the preponderance
of the evidence is against the claim for an increased rating
for the condition, the benefit-of-the-doubt rule does not
apply, and the claim must be denied. 38 U.S.C.A. § 5107(b);
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
E. Increased Rating for Headaches
The RO has assigned the veteran's service-connected headaches
a 10 percent disability rating pursuant to Diagnostic Codes
8045 and 8100.
The criteria for the assignment of disability ratings for
brain disease due to trauma are found in Diagnostic Code
8045, which specifies that purely neurological disabilities
such as hemiplegia, epileptiform seizures, facial nerve
paralysis, etc., following trauma to the brain, will be rated
under the diagnostic codes specifically dealing with such
disabilities, with citation of a hyphenated diagnostic code
(e.g., 8045- 8207). Purely subjective complaints such as
headache, dizziness, insomnia, etc., recognized as
symptomatic of brain trauma, will be rated 10 percent and no
more under Diagnostic Code 9304. This 10 percent rating will
not be combined with any other rating for a disability due to
brain trauma. Ratings in excess of 10 percent for brain
disease due to trauma under Diagnostic Code 9304 are not
assignable in the absence of a diagnosis of multi-infarct
dementia associated with brain trauma. 38 C.F.R. § 4.124a,
Diagnostic Code 8045; 38 C.F.R. § 4.130, Diagnostic Code
9304.
As the evidence does not show that the veteran has been
diagnosed with multi-infarct dementia associated with brain
trauma, a rating in excess of 10 percent for post-traumatic
headaches is not warranted under the above provisions.
The veteran's post-traumatic headaches could be rated by
analogy to migraine. Migraine is rated 10 percent when there
are characteristic prostrating attacks averaging one in 2
months over the last several months; migraine is rated 30
percent when there are characteristic prostrating attacks
occurring on an average of once a month over the last several
months. 38 C.F.R. § 4.124a, Diagnostic Code 8100. While the
veteran has complained of constant headaches on a daily
basis, it has not shown that he has prostrating attacks of
headaches (where he has to lie down) of a frequency as
required for a rating higher than 10 percent under Code 8100.
A VA neurological examination, performed in August 1998,
noted an impression of chronic headaches, tension type.
The Board notes that this is an initial rating case, and
consideration has been given to "staged ratings" for the
condition (i.e., different percentage ratings for different
periods of time based on the facts found) since service
connection became effective in July 1971. Fenderson v. West,
12 Vet. App. 119 (1999). However, the evidence shows that
since the effective date of service connection there have
been no identifiable periods of time during which the
veteran's headaches have warranted a rating greater than 10
percent.
The preponderance of the evidence is against the claim for a
rating higher than 10 percent for headaches. Thus, the
benefit-of-the-doubt rule does not apply, and the claim must
be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
ORDER
Service connection for a psychiatric disorder, specifically
PTSD, is granted.
Secondary service connection for a low back disorder is
granted.
A higher rating for residuals of fractured pelvis with
arthritis of the hips is denied.
A higher rating for stricture of the urethra is denied.
A higher rating for headaches is denied.
REMAND
The remaining issue on appeal is entitlement to a TDIU
rating. As noted above, the Board has granted service
connection for the psychiatric disorder of PTSD and for low
back disorder. The RO must assign percentage ratings for
these additional service-connected disabilities, and then it
must review the claim for a TDIU rating. Accordingly, this
issue is remanded to the RO for the following development:
After performing any additional
development deemed warranted, the RO
should assign percentage disability
ratings for the veteran's service-
connected PTSD and for his service-
connected low back disorder. Thereafter,
the RO should readjudicate the claim for
a TDIU rating. If the claim for a TDIU
rating remains denied, the RO should
provide the veteran with a supplemental
statement of the case, and give him an
opportunity to respond, before the case
is returned to the Board.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
____________________________________________
L.W. TOBIN
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.